Terms of use
Software License Agreement
AMSTM Optics
BY OPENING THE SOFTWARE PACKAGE, INDICATING ASSENT ELECTRONICALLY, OR DOWNLOADING, INSTALLING, COPYING, OR USING THE SOFTWARE, YOU AGREE TO ACCEPT THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CONTINUE DOWNLOADING, INSTALLING, COPYING OR USING THE SOFTWARE AND RETURN THE SOFTWARE FOR A REFUND.
Fisher Rosemount Systems, Inc., an Emerson Automation Solutions company (“Emerson”) provides the Software for your use. As used in this Agreement, the term “Software” refers to software, firmware and all related access keys, license management devices, documentation (e.g., manuals and specifications) and libraries as well as revisions or updates to the foregoing provided by Emerson or its distributor.
LICENSE AND RESTRICTIONS
Subject to your compliance with this Agreement and payment of applicable fees, Emerson grants you a non-transferable, non-exclusive license to: (a) use the Software provided to you to run on a single machine solely for your internal business purpose; and (b) copy the Software for backup purposes. A single machine may consist of a single physical machine with a single operating system or a single virtual machine running in a hosted environment. Your license to use the software may be perpetual or subject to a subscription period as specified in the documentation governing your purchase of the license. You agree not to exceed any limits applicable to your use of the Software (e.g., as may be identified in the documentation for the Software) nor use any features of the Software for which you have not purchased a license. Emerson may use technological and/or other measures to prevent unlicensed access to and/or use of the Software and/or its features, and you acknowledge and agree to the use of such measures, and that you shall not circumvent nor attempt to circumvent such measures. You must reproduce and include the copyright notice on any copy. YOU MAY NOT REVERSE ENGINEER, DECOMPILE, USE, COPY OR MODIFY THE SOFTWARE OR ANY BACKUP COPY (PERMITTED ABOVE), IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE. IF YOU TRANSFER POSSESSION OF THE SOFTWARE OR ANY COPY TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED AND NO RIGHTS ARE TRANSFERRED TO SUCH OTHER PARTY. Unless otherwise expressly permitted in writing, you may not use the Software to provide hosted services, subscription services, training services, consulting services, service bureau, time sharing, or rental use to third parties. No license, express or implied, is granted under any intellectual property directly or indirectly owned by Emerson which does not specifically read on the Software as provided hereunder, nor shall any license, except the license specifically granted herein, be implied in law, implied in equity, or exist under the doctrine of patent exhaustion.
SECURITY ASSESSMENTS
In the event you wish to assess the vulnerability of the Software (including conducting a penetration test or any other form of vulnerability assessment or test), you agree to obtain Emerson’s prior written consent. Emerson will not unreasonably withhold or unduly delay such consent, but you agree that Emerson may require that: (i) Emerson participate in any such tests/assessments, (ii) receive the results of such tests/assessments, and (iii) you not publish, distribute, or otherwise make available the results (in whole or part) to any third party without the express written consent of Emerson. Emerson may further require that any such tests/assessments be conducted in accordance with and subject to a separate written agreement between you and Emerson.
DIGITAL SIGNATURES
Emerson may attach or otherwise associate digital signatures to files of the Software to aid detection of subsequent modifications to such files. However, in attaching or associating such digital signatures, Emerson does not (i) guarantee that the Software or the files can be trusted, nor (ii) assume any liability or claim authorship with regard to third party files.
DATA PRIVACY AND USE
When you download, install or use the Software, Emerson may use automatic means to collect information about your device and about your use of the Software. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. We may collect information, including but not limited to information relating to the manner or frequency of your use of the Software. This includes data that we collect as part of our services. Some of the data we collect is relatively static, such as data about the product (for example, serial numbers and device IDs and the Emerson model and serial number), but other data is more dynamic, such as information about current and past product usage levels, information about abnormal product functioning, information about the status and location of products used with the Software and/or your device. We collect this data from you and the product and transmit it through your network and/or Internet services. Monitoring may continue until the Software is deleted or the services are canceled or terminated. Note that if you do not allow us to collect this information, we may not be able to provide the full capabilities of products and services. All information we collect through or in connection with this Software and the use of the Software in connection with Emerson products is subject to the Emerson privacy notice found at https://www.emerson.com/en-us/privacy-notice (“the Privacy Notice”). We will collect, use and disclose your personal information and the personal information of your additional users as set out in that Privacy Notice, and you and the additional users or third parties you have granted access or control consent to us doing so. The Privacy Notice applies subject to requirements of local law. In the event of a conflict between the Privacy Notice and applicable data protection laws, the stricter obligation applies. Furthermore, the data that is generated and collected by the Software may be stored in a hosted environment at a location identified to you in the documentation for the Software. You are solely responsible for compliance with all applicable local, state and federal data sovereignty laws, regulations and restrictions as it relates to the movement of data generated and collected by the Software.
TITLE
Title to and ownership of the Software, including all copies of the Software, shall at all times remain with Emerson or its licensors. Your right to use the same is at all times subject to the terms and condition of this Agreement. Emerson may, from time to time, revise or update the Software and, in so doing, incurs no obligation to furnish such revisions or updates to you, except as otherwise provided in a separate written agreement.
TERM
You may terminate this license at any time by destroying the Software together with all copies in any form. This license will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to promptly (i) destroy the Software together with all copies in any form and confirm such destruction in writing to Emerson or (ii) return the Software and all copies to Emerson.
LIMITED WARRANTY
Emerson warrants the media on which the Software is furnished to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery to you as evidenced by a copy of your invoice. However, Emerson does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted or error free. In addition, Emerson does not warrant that the Software or any equipment, system, or network on which the Software is used will be free of vulnerability to intrusion or attack. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EMERSON MAKES NO REPRESENTATIONS OR WARRANTIES OR BEHALF OF ITS LICENSORS.
LIMITATIONS OF REMEDIES
Emerson's entire liability and your exclusive remedy shall be: (i) the replacement of any media that does not conform with Emerson's "Limited Warranty" and which is returned with a copy of your invoice to Emerson, or (ii) if Emerson is unable to deliver a replacement media which is free of defects in materials or workmanship, you may terminate this Agreement by returning the Software and your money will be refunded. IN NO EVENT WILL EMERSON BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF ANY CAUSES WHATSOEVER (WHETHER SUCH CAUSES BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, PATENT INFRINGEMENT, OR OTHERWISE), INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH PROGRAM EVEN IF EMERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OF ANY CLAIM BY ANY OTHER PARTY.
GOVERNING LAW
This Agreement, and all matters concerning its construction, interpretation, performance or validity, shall be governed by the laws of the State of Texas, excluding its conflict laws. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
EXPORT RESTRICTIONS
Licensee shall comply fully with all laws, regulations, decrees and orders of the United States of America that restrict or prohibit the exportation (or reexportation) of technical data and/or the direct product of it to other countries, including, without limitation, the U.S. Export Administration Regulations.
U.S. GOVERNMENT RIGHTS
With respect to acquisition of the Software by or for the United States government, the Software is provided with "RESTRICTED RIGHTS" and is classified as “Commercial Computer Software,” as the term is defined in the applicable provisions of the Federal Acquisition Regulations and its supplements including the Department of Defense FAR Supplements. The terms and conditions of this Agreement govern the United States government’s use of the Software, except to the extent any term or condition is inconsistent with the federal laws of the United States.
GENERAL
You may not sublicense, assign, or transfer the license or the Software without the prior written consent of Emerson. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties, or obligations hereunder without such consent is void.
NUCLEAR APPLICATIONS: THE SOFTWARE IS NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS
You accept the Software with the foregoing understanding and agree to indemnify and hold harmless Emerson from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that Emerson’s liability is based on negligence or strict liability.
THIRD PARTY SOFTWARE
To the extent that a third-party owns any portion of the Software licensed under this Agreement, such third-party owner shall be a beneficiary of this Agreement, and shall have the right to enforce its rights under this Agreement independently of Emerson. Any third-party Software, not licensed under this Agreement, shall be subject to third-party owner’s applicable license agreement and registration requirement, and you authorize Emerson to provide your contact information, including company name, mailing address, telephone number, ship-to recipient address, and primary contact’s name, mailing address, telephone number, and email address, to such third-party owner for the purposes of product registration, support, and compliance with applicable import and export control laws, regulations, orders, and requirements.
Should you have any question concerning this Agreement, please contact your Emerson representative or sales office.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. YOU AGREE THAT EMERSON MAY AUDIT YOUR FACILITY AND RECORDS TO CONFIRM COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. EMERSON AGREES TO PROVIDE A REASONABLE WRITTEN NOTICE PRIOR TO CONDUCTING SUCH AN AUDIT AND AGREES TO CONDUCT THE AUDIT DURING REGULAR BUSINESS HOURS WITHOUT UNREASONABLY INTERFERING WITH YOUR NORMAL BUSINESS OPERATION.